Page 27 - Delaware Lawyer - Summer 2019

in Northeastern Pennsylvania found that only 17 percent of lower-income people faced with legal issues sought help from a legal provider.8 The American Bar Foundation’s Middle-Sized City Study estimated a similarly small proportion.9 When lower-income people encounter civil justice issues, more often than not, they involve two or more potentially justiciable issues. For example, a person dealing with a housing issue is likely also facing another civil justice issue, such as income, food, insurance or employment.
Most people with civil justice issues do nothing, try to solve issues on their own, or turn to friends and family for help. Of- ten, this is because they do not perceive their problems as having legal causes, solutions or consequences. Most people attribute these issues to uncontrollable, external causes, such as bad luck or God’s will, rather than a legal issue. They are twice as likely to report their issue to be a private matter rather than a legal matter.10 Reaching Out for Justice
For those who attempt to engage with the system, the help is often not there. When low-income people reach out for legal assistance, half of their justice is- sues receive no or limited legal assistance because the resources are not available, due to supply limitations or restrictions. The most crucial time is when help is first sought. Over half of the variability in be- ing represented for a civil legal case, for those who seek help, is linked to being of- fered legal assistance at the point of con- tact. Between 72 and 84 percent of the risk of being unrepresented is attributable to receiving no offer for service when the request for help is first made, regardless of supportive legal advice on alternative service or self-help materials.11 If civil jus- tice issues are legal problems with legal provider solutions, it is essential to align legal solution supply with legal solution demand.
Due to high incidence of civil justice issues and the lack of attorney supply to address these issues, especially for lower income people, many people engage in civil justice disputes without attorney representation. In under-resourced state
Due to high incidence of civil justice issues and the lack of attorney supply to address these issues, many people engage in civil justice disputes without attorney representation.
court systems, the vast majority of liti- gants are unrepresented, attempting to navigate an adversarial system that as- sumes proficiency in procedural and sub- stantive law. The lack of training, expe- rience and skills of pro se litigants com- plicates court action.12 The proportion of pro se litigants in the United States has significantly increased since the 1970s, and the culture of state civil courts has shifted to one in which most litigants are self-represented. Despite flat or declining resources, state civil courts have taken on a role in resolving increasing numbers of social problems among litigants, who have ever-diminishing support of coun- sel. Some social justice problems become civil justice problems; some civil justice problems become legal problems; some of those legal problems become court prob- lems. Improving representation for legal problems decreases court problems and enables judges to maintain their neutral role and for the court to engage in estab- lished adversarial processes.13
Outcomes Change by Representation Status in Delaware
Protection from Abuse. In Kent and Sussex Counties, there were 1,299 filings for protection from abuse orders (PFAs) in 2018, of which 152 were granted. About 22 percent of those filing for pro- tection were represented by Community
Legal Aid Society, Inc. (CLASI). Data based on trial judgments, consent orders and default orders show that those with CLASI representation were more likely to be granted a PFA.14 Overall, people seek- ing a PFA without CLASI assistance were 49 percent more likely to have their claim dismissed.
Regarding the overall population im- pact of lacking CLASI representation, one must consider the prevalence of case types (i.e., trial versus default or consent) as well as the risk of lacking representa- tion by case type. The complexity of a le- gal action is associated with the impact of representation.15 A trial case, for example, would be considered more complex than a default or consent case. It is also known that only a minority of cases are resolved at trial. In Delaware, although less com- mon (trials accounted for 23 percent of all PFA cases), trial judgments without CLASI representation increased the risk of PFA dismissal by 137 percent Consent and default PFA cases were more common (77 percent); lacking CLASI represen- tation in these PFA cases also increased risk of dismissal (37 percent). If universal CLASI representation was enabled, this means that 191 PFA dismissals could be averted—approximately 40 percent of those averted PFA dismissals would occur at trial and the remaining PFA dismissal avoidance would occur through consents or defaults case types.
Representing people experiencing partner or domestic abuse offers oppor- tunities to bundle legal services to of- fer more comprehensive care. Those in households experiencing violence are the most likely to report civil justice issues. Research in Connecticut, which better isolated representation status in civil pro- tection order cases, suggests that the Del- aware findings may well under-estimate the link between representation and PFA outcomes. The effect of representation in PFA trial judgments could increase to a 300 percent risk reduction and, as a con- sequence, more PFA outcomes would be attributable to representation.16 Using the Connecticut study results, this means that two litigants would need to be
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